What is the purpose of this Notice? This Notice is to notify the States that $3,150,000,000 of unobligated Federal-aid highway funds apportioned to the States are hereby rescinded as required by Division K, Title I of the Consolidated Appropriations Act, 2008, Public Law (Pub. L. No.) 110-161.

What apportioned funds are being rescinded?

Pursuant to Division K, Title I of the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, an amount of $3,150,000,000 is rescinded from the unobligated balances of funds apportioned under Chapter 1 of Title 23, United States Code (U.S.C.).

Pursuant to Division K, Title I of the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, the rescission shall not apply to funds distributed in accordance with:

(1) Section 130(f) of Title 23, U.S.C., for the Railway-Highways Crossings Program;

(2) Section 104(b)(5) of Title 23, U.S.C., for the Highway Safety Improvement Program;

(3) the first sentence of Section 133(d)(3)(A) of Title 23, U.S.C., for the division of Surface Transportation Program funds between urbanized areas of over 200,000 population and other areas;

(4) Section 133(d)(1) of Title 23, U.S.C., for the safety set-asides under the Surface Transportation Program, as in effect on the day before the date of enactment of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109-59; or

(5) Section 163 of Title 23, U.S.C., for Safety Incentives to Prevent Operation of Motor Vehicles by Intoxicated Persons, as in effect on the day before the date of enactment of SAFETEA-LU.

How are the apportioned funds being rescinded?

Pursuant to Title XI, Subtitle D, Section 1132(a) of the Energy Independence and Security Act of 2007, Pub. L. No. 110-140, the rescission shall be distributed within each State among programs which are apportioned under Chapter 1 of Title 23, U.S.C., and for which funds were apportioned in fiscal year (FY) 2008. The affected programs under Chapter 1 of Title 23, U.S.C., among which the rescission shall be distributed, are as follows: Interstate Maintenance, National Highway System, Bridge, Surface Transportation Program, Congestion Mitigation and Air Quality Improvement, Recreational Trails, Metropolitan Planning, Equity Bonus, and Transportation Enhancements.

Pursuant to Title XI, Subtitle D, Section 1132(a) of the Energy Independence and Security Act of 2007, within each State, the rescission is being distributed among the affected programs – to the extent sufficient funds remain available for obligation – in the ratio that the amount of funds apportioned for each affected program under Chapter 1 of Title 23, U.S.C., for FY 2008 bears to the amount of funds apportioned for all affected programs under Chapter 1 of Title 23, U.S.C. for FY 2008.

The distribution of the rescission has been calculated using FY 2008 apportionments, inclusive of funds programmatically distributed from the Equity Bonus Program, but exclusive of funds set aside for State Planning and Research and those funds withheld pursuant to Section 154 of Title 23, U.S.C. (Open Container Requirements), and Section 164 of Title 23, U.S.C. (Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence), which are separate from, but impact the programs by operation of law. The apportionments used to calculate the distribution of the rescission are also exclusive of funds from Sections 130(f) and 104(b)(5) of Title 23, U.S.C.; Sections 133(d)(1) and 163 of Title 23, U.S.C., as in effect on the day before the date of enactment of SAFETEA-LU; and the first sentence of Section 133(d)(3)(A) of Title 23, U.S.C. Each State’s share of the total amount to be rescinded, as well as the distribution of the rescission among the affected programs within each State, is reflected in Table 1.

Pursuant to Title XI, Subtitle D, Section 1132(b) of the Energy Independence and Security Act of 2007, a State may make adjustments to the distribution of the rescission within the State for a fiscal year by transferring the amounts to be rescinded among the affected programs, except that in making such adjustments the State may not rescind from any such affected program more than 110 percent of the funds to be rescinded from the program as determined by the distribution. The maximum allowable adjustment for each affected program is reflected in Table 2.

Pursuant to Title XI, Subtitle D, Section 1132(c) of the Energy Independence and Security Act of 2007, funds set aside for the Transportation Enhancements Program under Section 133(d)(2) of Title 23, U.S.C., shall be treated as being apportioned under Chapter 1 of Title 23 U.S.C., for purposes of distribution of the rescission.

What actions are required?

Division Administrators should ensure that this Notice is provided to State departments of transportation. In addition, Division Administrators should ensure that State departments of transportation officials are encouraged to reach out to stakeholders in considering how to implement the rescission.

Not later than 30 days after the date of this Notice, the States must identify the program codes from which amounts are to be rescinded, based on the distribution of the rescission in Table 1 and the maximum allowable adjustments to this distribution in Table 2. The program codes eligible for rescission exclude those for Sections 130(f) and 104(b)(5)of Title 23, U.S.C.; Sections 133(d)(1) and 163 of Title 23, U.S.C., as in effect prior to the date of enactment of SAFETEA-LU; and the first sentence of Section 133(d)(3)(A) of Title 23, U.S.C.

The States should ensure that a sufficient amount of unobligated funds are available within each program code and fiscal year selected to bear the rescission. For guidance, refer to the Fiscal Management Information System (FMIS) report W10 to assist in determining the program codes, fiscal years, and amounts to be applied to the rescission. Once the program codes, fiscal years, and amounts have been determined and submitted to the Federal Highway Administration's (FHWA) Office of Budget (HCFB), no obligations should be incurred by the State against the amounts identified to be rescinded.

When identifying the program codes and amounts to be rescinded, States must provide the following: program code, program title, fiscal year from which the funds are to be rescinded, total unobligated balance, and the amount to be rescinded from the total unobligated balance. The information should be submitted on the attached Table 3 to the HCFB official electronic mailbox, "FHWA, Budget Division."